Evidence-based justice

Dane County Circuit Court Judge Nicholas McNamara remembers the first time he decided to release a person who was in jail on a cash bail order.

The offender was poor — unable to pay the amount deemed necessary for his release. McNamara, a newly elected judge, decided the man had been locked up for long enough. He changed the cash bail to a signature bond and set the man free.

Twelve hours later, the man stabbed his brother.

The case highlights a significant challenge within the criminal justice system — determining appropriate conditions for pretrial release. Under Wisconsin statute, these conditions are “designed to assure [the alleged offenders’] appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses.” But getting the decision exactly right is difficult, McNamara says.

“You’re asking humans to do assessments of other humans using imperfect information,” he says.

The U.S. Supreme Court has stated that the pretrial period is “perhaps the most critical” part of the legal proceedings and a time during which defendants require the “guiding hand of counsel.”

Pretrial risk assessment tools can help, using objective, evidence-based standards to determine which individuals should be detained and which should be released. Only about 10% of courts nationwide use such models, but research has shown that they have the potential to reduce jail populations and increase public safety.

Dane County officials announced March 1 a new partnership with the Laura and John Arnold Foundation, a philanthropic organization that uses “evidence-based, multi-disciplinary approaches” to solve problems in areas like criminal justice, education and research integrity. The county’s Criminal Justice Council and pretrial reform subcommittee has been reviewing “best pretrial practices” for the past two years with an eye toward reforming the system and reducing racial disparities in incarceration.

The county will become one of nearly 30 jurisdictions nationwide to implement the Arnold Foundation’s Public Safety Assessment, a pretrial risk evaluation model that has garnered positive results in pilot sites nationwide by evaluating conditions related to criminal history, charges and age.

In Mecklenburg County, N.C., the jail population has dropped nearly 20% since implementing the model in spring of 2014, according to the Arnold Foundation. In Kentucky, which has used the model statewide since 2013, both the jail population and the number of crimes committed by people out on bond have decreased. The PSA has also proven to be both gender- and race-neutral in its outcomes.

Dane County’s racial disparity in arrest and incarceration rates has been well-publicized in recent years, prompting local officials to approve a comprehensive criminal justice overhaul to improve outcomes for minority and low-income individuals. Proponents hope that a new pretrial assessment system could help mitigate the problem by eliminating bias, but some fear that the data-driven approach could have the opposite effect.

Despite the Arnold Foundation model’s success, the use of pretrial assessment tools does have its opponents — former U.S. Attorney General Eric Holder has warned against the use of data-driven criminal justice programs, saying that sentencing decisions “should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.” He argues that minority and low-income communities could be adversely affected by the approach.

“It could turn out that applying a risk assessment instrument actually increases the number of people who are required to post bail,” says Dane County Circuit Court Judge Juan Colas, who serves on the county’s Criminal Justice Reform Council. He is “hesitant to say” that the county needs a wholesale change when it comes to pretrial release and conditions of bail, but he is in favor of more data to provide insight into the current system.

In addition to the PSA tool, Dane County will also participate in a study led by researchers from Harvard University examining the new model’s impact. Since the jurisdiction is small, it will take several years to get usable data from the study, but local officials hope the analysis can help guide the criminal justice system as it explores reforms — particularly those that address racial disparity.

In Madison as well as nationwide, criminal justice reform activists have spoken out against incarcerating people for “crimes of poverty,” like being detained for being unable to make bail. This is a rare occurrence in Dane County, McNamara says — about 80% of misdemeanor offenders and 60% of felony offenders are released on signature bonds, by his analysis. But moving to a pretrial assessment model that releases people based on whether or not they pose a danger instead of whether or not they can pay could reduce the number of people who are being held unnecessarily.

“Racial disparity is real, economic disparity is real” McNamara says. “So if it’s true that too many poor people are being held in jail pretrial simply because of poverty, then that’s wrong, and we need to change that.”